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Second Circuit Affirms Parole Conditions Imposed On Notorious Spy

In a summary order issued on May 24, 2017, Pollard v. United States, 16-2918 (Raggi, Carney, and Kaplan by designation), the Circuit affirmed the decision of the United States District Court for the Southern District of New York ( Forrest, J.), denying Pollard’s habeas corpus petition pursuant to 18 U.S.C. § 2241 to challenge conditions of his parole. Pollard, arguably one of the most notorious spies in American history, was arrested in 1985 after passing top secret documents to Israel while working as a research analyst for the U.S. Navy.

Like other spies before him, Pollard committed his crime against the United States for money, insisting that he be paid more money by his handlers in the course of his offense. [1] Pollard turned over to a foreign country some of the most sensitive documents belonging to the United States government, including the Top Secret Radio Signal Notations Manual, which listed the physical parameters of every known electronic signal, and disclosed how the United States collected such signals.[2] Although Pollard’s defenders have for many years minimized the nature of his crime, Secretary of Defense Caspar Weinberger wrote in a declaration submitted to the district court that “[i]t is difficult . . . to conceive of a greater harm to national security than that caused by [Pollard] in view of the breadth, the critical important to the U.S., and the high sensitivity of the information he sold to Israel.”[3]

Pollard pleaded guilty to conspiracy to deliver highly classified information to Israel. He was sentenced to life in prison for violation of the Espionage Act. In 2015, after serving 30 years of his sentence, Pollard was paroled subject to special conditions, including GPS monitoring, computer monitoring and a curfew. Although it is often said in the course of guilty plea allocutions that “parole has been abolished in the federal system,” parole existed when Pollard was convicted, and therefore, he remained eligible for parole notwithstanding its abolition as part of the 1984 Sentencing Reform Act.

The Second Circuit explained that § 2241 review of Parole Commission decisions is “extremely limited” and will be disturbed only where the Commission’s determination lacks a rational basis. The Circuit found that the Commission did not abuse its discretion or act without a rational basis in imposing the GPS monitoring and curfew conditions on Pollard. The Circuit identified no error in the Commission’s consideration of the deceptive nature of Pollard’s criminal conduct, his open desire to leave the United States for Israel, and his propensity to violate conditions imposed during his prosecution and incarceration relating to the classified information he had compromised. The Commission acted within its discretion to impose special conditions in light of the fact that the national intelligence documents compromised by Pollard remain classified and that Pollard, on at least 14 occasions, attempted to disseminate classified information in his prison correspondence. The Circuit rejected Pollard’s argument that because the GPS monitoring and curfew will not absolutely prevent him from disclosing classified information or fleeing from the United States, these conditions cannot be deemed rationally related to the government’s interest in minimizing the risk of harm Pollard continued to pose for United States intelligence. The Second Circuit explained that a special parole condition does not need to “strike at all evils at the same time,” but may “only partially ameliorate a perceived evil.”

Similarly, the Second Circuit found that the Commission did not abuse its discretion or act without a rational basis in imposing the computer monitoring condition on Pollard. The Circuit found that the Commission properly considered Pollard’s propensity to dissemble, his history of violating a court-imposed gag order, and the continued classified status of information he compromised in imposing this special condition on Pollard. The Circuit rejected Pollard’s claim that the monitoring condition precluded him from finding any job because Pollard failed to present any evidence that he attempted to find employment consistent with this condition or that he had ever discussed this condition with any prospective employer. The Circuit also rejected Pollard’s argument that the computer monitoring condition is not reasonably related to government interests because he did not use a computer or the internet to commit the crime. The Circuit explained that there is a reasonable nexus between Pollard’s conduct, which involved the dissemination of information, and computers, which had become the leading means of distributing information in the modern world.

The monitoring conditions upheld by the Second Circuit require Pollard to obey a 7 p.m. to 7 a.m. curfew, to submit any computer he uses for inspection, and to wear an electronic tracking device at all times. Pollard, who now lives in New York City, also must remain in the United States for five years. Absent a different decision by the Parole Commission in the future, Pollard will be required to remain in the United States for the time being and to comply with the other restrictions on his liberty that the Court held are rationally related to his serious crime and to the identified risks posed by removing those conditions.

-By Julia Stepanova and Harry Sandick

[1] M.E. Bowman, “Don’t Trust This Spy,” N.Y. Times (Jan. 14, 2014) (article written by coordinator of an investigation into Pollard illegal activity).